In our last entry, we began discussing the law school exam scenario turned real life divorce case in the Supreme Judicial Court’s (SJC) recent case, Duff-Kareores v. Kareores. The trial judge faced the challenge of determining how long the marriage was for alimony purposes, under M.G.L., ch. 208, §4. The parties were married for 8 years, divorced and lived separately for 4 years, cohabited while divorced for 5 ½ years and, finally, re-married each other for 6 months before the onset of divorce #2: uncharted territory under the Alimony Reform Act (ARA) (eff. 3.1.12).
The SJC upheld the inclusion of the first marriage years, and the cohabitation era, but vacated the trial court’s order because the 4-year period of divorced separation should not have been counted, since the statutory marriage extender (§48) is limited to cohabitation periods. The last time, we concurred with the SJC’s treatment of the separation and non-married cohabitation periods.
Today, we tackle the SJC’s decision to include the years of the first marriage in calculating the length of maximum alimony for the second divorce, under M.G.L, ch. 208, §49(b). At stake for the parties:
1. Was this a 6 or 14-year marriage for alimony purposes?
2. Was the presumed maximum length of alimony, therefore, 3 years, 7 months or 9 years, 10 months?
The SJC chose the longer marriage length, and resulting alimony term, focusing on the totality of the parties’ marriage/cohabitation history, rather than its truncated reality.
In doing so, the SJC showed little concern that “marriage” is a distinct legal status from pre-marital “cohabitation”, the latter term being the statutory language on which the question turns. The contrary argument goes that a judge may lengthen a marriage by reason of economic partnership during a non-married cohabitation, but the statute says nothing about a prior marriage. But, perhaps because marriage itself includes an expectation of cohabitation, the SJC saw this distinction as one without a difference, for these purposes. Being versed in criminal law, maybe they saw cohabitation as a lesser-included offense!
The SJC also navigated past the fact that the alimony obligations arising from the first marriage had been previously adjudicated by a judgment that included merged alimony; effectively, treating the first divorce as simply another a stop along the way for this evolving family. As we view it, the court, did not re-adjudicate previous rights. Rather, in determining alimony rights created by the law as applied to the second marriage, the trial judge and the SJC simply “counted” years of the first marriage, as part of a factual artifice that the legislature created, and which had to be construed one way or another, in frankly, unanticipated circumstances.
Once the legislature plunged into the business of calling something that it is not– the explicit permission granted by §48 - it opened the door to interpretation. In Massachusetts, the SJC is the interpreter-in-chief; and we don’t have a problem with the call that the high court made on this one. There is nothing in ARA that precludes the Kareores result, and if the purpose of M.G.L, ch., 208, §49(b)’s sliding time scale for durational limits is to honor the concept that longer partnerships connote greater rights and obligations, it seems that the SJC’s construction achieves this purpose.
As the SJC previously said in Bercume v. Bercume (admittedly, a different context), it does not write on a clean slate; and the parties’ here knew their slate very well indeed, including the risks and benefits of ARA, when they resumed marital status. (What a perfect situation for a prenuptial agreement, but that is water under the bridge.)
We do have one reservation that the SJC did not address, however: the troubling fact that the husband paid alimony for 4 years, under the first divorce and before the pre-second-marriage-cohabitation. By tacking on the period of the first marriage as part of the statute’s fictional length of marriage, a risk of double counting arises. It seems that the remand ought to have required the trial court to consider this fact in determining the ultimate alimony term, either as a “credit” against the alimony months ultimately ordered, or at least as an equitable basis for considering a shorter term. After all, M.G.L., ch. 208, §49(b) sets forth a “not longer than” standard and not a rote alimony length.
In our next entry, we will comment on an unrelated collateral benefit of this decision.